Public Health Ethics Marcel Verweij Summerschool Health Law, Rotterdam, July Ethics Institute / Department of Philosophy

Program for today Lecture on public health ethics Shift from medical ethics to public health ethics The concept of ‘public health’ and public health ethics Several justifications for liberty-limiting interventions in public health Preparing discussions for Thursday and Friday Cases: public health interventions to prevent overweight and obesitas mandatory vaccination programs legionella

The development of medical ethics and law Hippocratic ethics Roman Catholic law and ethics Regulation of medical research with human subjects Especially since WWII; Neurenberg Code (1948) Atrocities; medical scandals Protection of patients/human subjects Ethical reflection on physician-patient relationship Especially since 1970s and onwards Caring relationship aimed at good of patient Limits to physician’s authority; protection of patient autonomy Rights of patient vs duties of health professional --> strong individualistic focus

From medical ethics to public health ethics Since turn of century shift in attention to: Global health; international level; developing countries Infectious disease control HIV/Aids pandemic 9/11 aftermath: bioterrorism, anthrax threats SARS; pandemic preparedness But also: Health promotion Screening programs Justice and equity in health From treatment to prevention From individual to collective

Shift in focus: to prevention, to public health Interventions aimed at populations Considerations about aggregation and distribution of health Target group: healthy persons, without complaints Health risks are everywhere, hence preventive interventions could be pervasive in our lives Success often only visible on population level Preventive interventions can bring burdens and risks, and not everyone receives the benefits Target groups need to be persuaded, sometimes pressed, if not forced Possible conflicts between public health and freedom and wellbeing of individuals

What is ‘public health’? interventions; programs; policies the state of health of the public Collective, or public in two ways: Collective interventions aimed at protection or promotion of the health of the public

Collective interventions to promote public’s health - various senses of ‘public’ Collective interventions state intervention programmatic approach (different professionals working together) participation of members of public often necessary health of public aggregation of health of individuals also distribution of health (morbidity/mortality) health determinants are often public: risks open to all Public health is a political enterprise requires political/legal justifications

Possible line of reasoning: Health is necessary for living one’s life Almost all persons consider their health very important Hence, the state is justified to implement programs that protect and promote health Or: all state interventions that effectively protect health, are morally and politically justified. Do you agree? Why (not)?

Example Infectious disease control: history and present show examples of public health interventions that do raise moral problems

London, Great Plague 1665

First Reason against shutting Men up for the Plague, From the Communion of Saints, and the practice of the Primitive Christians. Second Reason... From the spreading of the Infection by it. Third Reason... from the experience of former times, when Plagues did not cease till there was freedom of Converse allowed. Fourth Reason... from the condition of those houses and the inhabitants thereof. Fifth reason... from the condition of those houses Sixt reason... because that keeps Men in ignorance of the nature and remedy against the Plague.

Infectious disease control Leprosy Fear of infection Desert Harsh measures against leprosy

Infectious disease control

Compulsion/coercion: limits to freedom, privacy Screening Notification Contact tracing Quarantine Isolation Medical examination Treatment Vaccination Banning from job ‘Social distancing’ Role of criminal law

Possible line of reasoning: Health is necessary for living one’s life Almost everyone thinks health to be very important Hence, the state is justified to implement all programs that protect and promote health Or: all state interventions that effectively protect health, are morally and politically justified. Do you agree? Why (not)?

Example 2: prevention of overweight and obesitas

Exercise: Think of a probably effective measure to countervail the increasing prevalence of overweight and obesity, which the state could consider.... if there where no moral or legal constraints

Moral justifications for public health interventions 1.Weak paternalism 2.The harm principle 3.Considerations of (distributive) justice Protecting public goods; countervailing free-riding Protecting worse-off groups 4.Utilitarian arguments 5.Communitarian arguments

1. Weak paternalism Paternalist interventions: interventions that interfere with freedom of individual, for her own good, without her consent. Weak paternalism: if the individual is insufficiently capable to make her own autonomous choice Interventions aimed at children...aimed at persons not aware of risks....interfering with involuntary behaviour ( Strong paternalism: Interventions that put constraints on autonomous choices )

2. The harm principle: JS Mill, On Liberty, 1859 “... the only purpose for which power can be rightfully excercised over any member of a civilised community, against his will, is to prevent harm to others.” Two aspects: Certain reasons should not play role in liberty-limiting policies (antipaternalism); importance of freedom Some reasons (prevent harm to others) offer strong justification for coercive policies Strengths: Consistent with maximum emphasis on freedom of individuals ‘Preventing harm to others’ is consistent with every democratic constitution Weakness: Public health often not only to prevent harm between persons

3. Considerations of distributive justice Justice: about how benefits and burdens of policies are distributed. Various theories will support interventions that set limits to individual freedom if these are necessary to... protect public goods goods that are open to all, also to those who do not contribute E.g. vaccination: it may be rational for individuals to profit from herd immunity, and forego vaccination for themselves (free riding) protect persons who are worst off E.g. mandatory health insurance scheme

4. Utilitarian arguments Utilitarianism: policies should always promote general (aggregative) welfare. This means: choose the policy which has the best consequences in terms of welfare. Bentham: ‘the greatest happiness, for the greatest number’ Strenghts: intuitively appealing theory; fits with economic theory (e.g. cost-benefit analyses: QALYs, DALYs) Weaknesses: rights and wellbeing of individual relatively unimportant distributive aspects only relevant for effects on aggregate welfare paternalism?

5. Communitarianism Different type of argument Intrinsic connection between individual wellbeing and common good Hence, tension between individual - society should not be overplayed. Weaknesses: presupposes shared conception of what good is for persons; ignores pluralism in modern societies, where individuals have diverging conceptions of good life paternalism? emphasis on community is fine, but clear concept of ‘common good’ might be lacking

Summary: arguing for liberty-limiting public health measures 1Weak paternalism 2 To prevent harm to others 3aTo protect public goods 3bTo protect worse-off groups 4To promote aggregative welfare (utilitarianism) 5Individuals only flourish in a flourishing community (communitarianism) Arguments not sufficient: Additional concerns: intervention should -be effective in preventing disease -be proportional to risks to be prevented -involve the least infringement possible Importance of public trust; accountability

Discussion Exercise: Think of a probably effective measure to countervail the increasing prevalence of overweight and obesity, which the state could consider.... if there where no moral or legal constraints Exercise: Discuss this measure in the light of several of the arguments proposed: can you give a reasonable justification?